Com. v. Pirl, D. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEMETRIUS PIRL :
:
Appellant : No. 628 WDA 2018
Appeal from the Judgment of Sentence June 5, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0005797-2016
BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 30, 2020
Appellant, Demetrius Pirl, appeals from the June 5, 2018 judgment of
sentence entered after a jury convicted him of attempted murder and
aggravated assault.1 We affirm.
The trial court summarized the facts of the crimes as follows:
At trial, Allegheny County Police homicide detective Kevin L.
McCune testified that he responded to investigate a shooting at
782 Camp Hollow Road, West Mifflin, Pennsylvania on May 1,
2016. He noticed some articles of clothing and what . . . appeared
to be a cell phone along with what appeared to be blood in the
area. (N.T. p. 25)[.] He also testified that a 9mm Glock pistol and
(2) .45 caliber spent casings had been found in the yard by West
Mifflin police officers. (N.T. pp. 25–36)[.]
Jennifer Staley testified that she lived three doors away, at
790 Camp Hollow Road[,] and around 1:00 a.m. she heard several
gunshots and called 9-1-1. (N.T. pp. 44–45)[.]
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1 18 Pa.C.S. §§ 901(a), 2502(c), and 2702(a)(1), respectively.
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The owner of 782 Camp Hollow Road[, Donald Steinert,]
testified that he was awakened at 1:00 a.m. by his dog who was
growling and barking. Mr. Steinert observed an unknown person
laying in his backyard[,] and he proceeded outside. He observed
a man, bleeding, either talking on a cell phone or trying to make
a call. (N.T. p. 49)[.] He asked the man what he was doing in his
yard and the man didn’t have an answer. The man lying in the
yard told Mr. Steinert his name and said he’d been shot. The man
said Demetrius shot him, and Mr. Steinert asked[,] “Who?” [T]he
man said[,] “Demetrius Pirl shot me.” (N.T. p. 51)[.] The victim
said his name was Duane Alston (“the Victim”), and West Mifflin
police arrived a minute or two later. [The Victim] asked Mr.
Steinert to call his girlfriend[,] and [Mr. Steinert] talked back and
forth with [the Victim]. On cross examination, Mr. Steinert
testified that [the Victim’s] exact words were “I am dying.
Demetrius shot me.” When asked “Who?” [the Victim]
responded[,] “Demetrius Pirl shot me.” (N.T. p. 56)[.]
* * *
The Commonwealth called West Mifflin [P]olice [O]fficer
William Crousey, who responded to the scene at 1:00 a.m. [H]e
observed the [V]ictim laying on the ground and heard him say[,]
“Demetrius Pirl shot me.” (N.T. p. 59)[.]
Tyler Scruggs, another West Mifflin [P]olice [O]fficer[,]
arrived in response to a shots[-]fired dispatch. (N.T. 65)[.] He
testified that he asked the [Victim] his name, and was told Duane
Alston. [The Victim] said he was shot. The officer observed an
entry wound in the back of the [V]ictim’s head, and the entire
right side of his face was swelled. [The Victim] was spitting out
blood and teeth while trying to speak. The officer asked if he
kn[e]w who shot him, and [the Victim] responded “little Meech.”
When asked if the person went by other names, [the Victim] told
him[,] “Yes, Fat-Tay.” The officer asked what his real name was[,]
and [the Victim] told him Demetrius Pirl, several times. The
officer asked whether it was Demetrius Pirl[,] Sr. or Demetrius
Pirl, Jr., since there are two men with that name, and [the Victim]
identified the man who shot him as Jr. The officer also testified
that he discovered the Glock and two (2) spent .45 caliber casings
seven[] to eight feet away from where [the Victim] was laying.
(N.T. p. 65-60)[.]
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[The V]ictim was called as a witness. He testified that he
had been shot, but didn’t remember anything about the shooting.
(N.T. p. 70)[.] He remembered waking up in the hospital, but
nothing about the night he was shot[.] (N.T. p. 78)[.]
Sergeant Rick Bandik[,] a West Mifflin [P]olice [O]fficer[,]
testified that he responded to the scene, and that [the Victim] told
him that Demetrius Pirl shot him. (N.T., p. 73)[.]
Jason Clark, a scientist with the Allegheny County Office of
Medical Examiner, testified that he was unable to obtain any latent
fingerprints for identification purposes from any exhibits,
particularly the Glock firearm.
Allegheny County Police Homicide [D]etective Steven
Hitchings testified that Demetrius Pirl[,] Jr. had the street names
of “little Meech” and “Fat-tay.” Detective Hitchings also testified
that Demetrius Pirl, Sr. could not have been at the scene of the
shooting, since Demetrius Pirl, Sr. was lodged in the Allegheny
County Jail at the time. (N.T., pp. 80-82)[.]
Detective McCue was re-called to testify that after
[Appellant’s] arrest, [Appellant] agreed to make a statement.
[Appellant] did not admit to shooting [the Victim], although he
met with him earlier in the day. [Appellant] blamed Talisha
Adams, for the shooting. (N.T. p. 91)[.]
The medical records of [the Victim] were also admitted into
evidence, as Exhibit 14 . . . . (N.T. pp. 97-98)[.]
Trial Court Opinion, 5/3/19, at 3–5 (footnote omitted).
The jury convicted Appellant on December 7, 2017, of attempted
murder and aggravated assault. On February 28, 2018, the trial court
sentenced Appellant to fifteen to thirty years of imprisonment for attempted
murder and determined that the aggravated assault conviction merged for
purposes of sentencing. Appellant filed a timely post-sentence motion (“PSM”)
on Monday, March 12, 2018. The trial court held a hearing and ultimately
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denied the PSM on May 11, 2018.2 Appellant filed a notice of appeal on May
2, 2018.3 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
On June 5, 2018, the trial court corrected the sentencing order.
We first consider whether the trial court had the authority to correct the
sentencing error4 on June 5, 2018, after the notice of appeal was filed. The
question of whether a trial court has the authority to correct an alleged
sentencing error poses a pure question of law. Commonwealth v. Borrin,
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2 The order denying the PSM, although dated April 11, 2018, was not filed
until May 11, 2018.
3 The May 2, 2018 notice of appeal was filed while the PSM was pending,
thereby suggesting quashal of the appeal. See Commonwealth v. Claffey,
80 A.3d 780, 783 (Pa. Super. 2013) (noting that appeal filed while timely
PSMs were pending may be premature); see also Pa.R.Crim.P. 720, cmt. (“No
direct appeal may be taken by a defendant while his or her post-sentence
motion is pending.”). Where a notice of appeal is filed while a timely PSM is
pending, the appeal will be quashed because the judgment of sentence has
not been made final by denial of the PSM. Pa.R.Crim.P. 720, cmt.;
Commonwealth v. Borrero, 692 A.2d 158 (Pa. Super. 1997).
Here, in the interest of judicial economy, the May 2, 2018 notice of
appeal, although prematurely filed, is considered timely filed. See Pa.R.A.P.
905(a)(5) (“A notice of appeal filed after the announcement of a determination
but before the entry of an appealable order shall be treated as filed after such
entry and on the day thereof.”). Thus, the appeal, treated as if the notice was
filed on May 11, 2018, the day the PSM was denied, is considered timely filed.
4 The trial court corrected clerical errors in the original sentencing order on
March 6, 2018, (Appellant confined at “SCI Camp Hill,” not “Allegheny County
Jail”); April 11, 2018, (“Costs are waived”); and June 5, 2018 (Count 1
“Criminal Attempt-Criminal Homicide,” not “Murder of the Third Degree”).
Only the June 5, 2018 Corrected Order of Sentence post-dates the filing of the
notice of appeal.
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12 A.3d 466, 471 (Pa. Super. 2011) (en banc). As such, our scope of review
is plenary, and our standard of review is de novo. Id.
This Court recently explained:
“Trial courts have the power to alter or modify a criminal
sentence within thirty days after entry, if no appeal is taken.”
Commonwealth v. Quinlan, 433 Pa. Super. 111, 639 A.2d
1235, 1238 (1994), appeal dismissed as improvidently granted,
544 Pa. 183, 675 A.2d 711 (1996). See also 42 Pa.C.S.A. § 5505
(stating except as otherwise provided or prescribed by law, court
upon notice to parties may modify or rescind any order within 30
days after its entry, notwithstanding prior termination of any term
of court, if no appeal from such order has been taken or allowed).
Nevertheless, once the thirty-day period expires, the trial court
usually loses the power to alter its orders. Quinlan, supra. An
exception to this general rule exists to correct “clear
clerical errors.” Borrin, supra at 471. “This exception to the
general rule of Section 5505 cannot expand to swallow the rule.”
Commonwealth v. Holmes, 593 Pa. 601, 617, 933 A.2d 57, 66
(2007). Thus, the court’s inherent authority to correct patent
errors is a “limited judicial power.” Id. at 618, 933 A.2d at 67.
“An alleged error must qualify as a clear clerical error (or a
patent and obvious mistake) in order to be amenable to
correction.” Borrin, supra at 473.
Commonwealth v. Kremer, 206 A.3d 543, 548 (Pa. Super. 2019) (en banc)
(emphasis added). Thus, while the intervening appeal appears to prevent the
trial court’s action, Kremer makes clear that the lower court may correct a
clear clerical error.
We note that instantly, the June 5, 2018 sentence correction was not
within thirty days of the April 11, 2018 sentence correction. However, it was
within thirty days of the date the judgment of sentence became final, as we
previously noted that the judgment of sentence became final upon the May
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11, 2018 denial of the PSM. Supra note 2. Thus, we must ascertain whether
the June 5, 2018 sentence correction was a “clear clerical error.” Kremer,
206 A.3d 543.
The sole correction of the June 5, 2018 Corrected Order of Sentence,
related to the misstatement that the crime specified at Count 1 was “Murder
of the Third Degree.” The June 5, 2018 Corrected Order of Sentence clarified
that Count 1 was “Criminal Attempt-Criminal Homicide.” The Kremer Court
underscored that “only when a trial court’s intentions are clearly and
unambiguously declared during the sentencing hearing can there be a ‘clear
clerical error’ on the face of the record, and the signed sentencing order
subject to later correction.” Kremer, 206 A.3d at 548.
There was never any ambiguity that Appellant did not face the charge
of third degree murder. The Victim herein did not die. The criminal complaint
charged attempted murder. Complaint, 5/1/16. The information charged
attempted murder. Information, 7/29/16. The jury was instructed inter alia,
on attempted murder. N.T., 12/7/17, at 223. The sentence imposed at the
Sentencing Hearing was for attempted murder. N.T. (Sentencing), 2/28/18,
at 3–36. There was no ambiguity in the sentencing transcript. There are no
“inconsistent inferences,” and it is not “open to competing interpretations,”
the Kremer Court’s hallmarks of ambiguity. Kremer, 206 A.3d at 549.
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Because the sentencing transcript displayed a clear clerical error, the June 5,
2018 Corrected Order of Sentence is proper.5
Appellant raises the following issues on appeal:
I. [Appellant] was denied due process and a fair trial when the
trial court admitted, over objection, the statements made by the
[V]ictim wherein he identified [Appellant] as the shooter, when
those statements were clearly hearsay and did not fall under
either a “dying declaration” or an “excited utterance” exception to
the hearsay rule.
II. [Appellant] was denied due process and a fair trial when the
trial court denied the defense request for a neurologist to review
the [V]ictim’s medical records and to provide expert testimony to
explain whether the [V]ictim, who was shot in the back of the
head, would have the mental capacity or ability to identify his
shooter accurately at the time of the incident, but then later have
no recollection of the event or of the shooter.
III. The convictions for attempted homicide and aggravated
assault were not supported by sufficient evidence because the
identity of the shooter was only established through inadmissible
hearsay statements of the [V]ictim. In the absence of the hearsay
statements, there was no evidence which established that
[Appellant] was the shooter.
Appellant’s Brief at 5.6
In his first issue, Appellant argues that the Victim’s identification of
Appellant as the person who shot him was impermissible hearsay, and the
trial court’s admission of the statements as either dying declarations or excited
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5 We note our consternation that neither party nor the trial court mentioned,
let alone discussed, the multiple sentencing corrections and their impact on
the appealability of this case.
6 The above issues are the identical issues raised in the Rule 1925(b)
statement.
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utterances was an abuse of discretion. Appellant’s Brief at 18. Appellant
maintains that the statements cannot be labeled as dying declarations
because the Victim did not die. Id. at 20. Appellant also asserts that the
statements are not excited utterances because they were made “upon
reflection,” Appellant “was speaking slowly rather than in a rushed, excited
manner,” and he “was talking calmly.” Id. at 21–22. Based on the record
before us, we discern no abuse of discretion in this regard.
Appellant filed a motion in limine on June 19, 2017, seeking to preclude
the Victim’s statements to three police officers and one civilian witness at the
scene identifying Appellant as the person who shot him. N.T. (Motion in
Limine, 7/19/17, at 3, 8. The Commonwealth filed a response on June 28,
2017, and the trial court held a hearing on the motion on July 19, 2017.
This issue concerns the admissibility of evidence. It is well settled that
the admissibility of evidence lies within the sound discretion of the trial court
and will not be disturbed absent an abuse of discretion. Commonwealth v.
Bidwell, 195 A.3d 610, 616 (Pa. Super. 2018). “An abuse of discretion is not
merely an error of judgment, but is rather the overriding or misapplication of
the law, or the exercise of judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as shown by the evidence of
record.” Id. (citation omitted).
Hearsay is defined as an out-of-court statement offered for the truth of
the matter asserted. Commonwealth v. Manivannan, 186 A.3d 472, 482
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(Pa. Super. 2018) (citing Commonwealth v. Mosley, 114 A.3d 1072, 1084
(Pa. Super. 2015); Pa.R.E. 801 and 802). Hearsay is generally inadmissible
unless it falls within an exception to the hearsay rule set forth in the
Pennsylvania Rules of Evidence. Manivannan, 186 A.3d at 482.
The trial court concluded that the statements were admissible as either
dying declarations or excited utterances. Trial Court Opinion, 8/6/18, at 5.
“[A]n excited utterance is [a] statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused
by the event or condition.” Commonwealth v. Mollett, 5 A.3d 291, 310 (Pa.
Super. 2010) (citing Pa.R.E. Rule 803(2)).7
Pa.R.E. 803 provides, in pertinent part, as follows:
Rule 803. Exceptions to the Rule Against Hearsay--
Regardless of Whether the Declarant Is Available as a
Witness
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness:
* * *
(2) Excited Utterance. A statement relating to a startling event
or condition, made while the declarant was under the stress of
excitement that it caused. . . .
Pa.R.E. 803(a)(2). The comment to the rule states, in pertinent part:
This exception . . . requires an event or condition that is startling.
. . . [A]n excited utterance (1) need not describe or explain the
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7 Due to our disposition that the statements were properly admitted as excited
utterances, we need not evaluate whether they also were admissible as dying
declarations.
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startling event or condition; it need only relate to it, and (2) need
not be made contemporaneously with, or immediately after, the
startling event. It is sufficient if the stress of excitement created
by the startling event or condition persists as a substantial factor
in provoking the utterance.
There is no set time interval following a startling event or condition
after which an utterance relating to it will be ineligible for
exception to the hearsay rule as an excited utterance.
Pa.R.E. 803(a)(2), cmt. Regarding the relevant factors in determining
whether a statement falls within the excited-utterance exception, this Court
has identified the following:
A spontaneous declaration by a person whose mind has been
suddenly made subject to an overpowering emotion caused by
some unexpected and shocking occurrence, which that person has
just participated in or closely witnessed, and made in reference to
some phase of that occurrence which he perceived, and this
declaration must be made so near the occurrence both in time and
place as to exclude the likelihood of its having emanated in whole
or in part from his reflective faculties.
Commonwealth v. Manley, 985 A.2d 256, 265 (Pa. Super. 2009) (some
internal citations omitted) (citing Commonwealth v. Stallworth, 781 A.2d
110, 119-120 (Pa. 2001). “It is important to note that none of these factors,
except the requirement that the declarant have witnessed the startling event,
is in itself dispositive. Rather, the factors are to be considered in all the
surrounding circumstances to determine whether a statement is an excited
utterance.” Commonwealth v. Sanford, 580 A.2d 784, 788 (Pa. Super.
1990).
The circumstances surrounding the statements may be sufficient to
establish the existence of a startling event. Commonwealth v. Murray, 83
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A.3d 137, 158 (Pa. 2013). As we described in Manley, an attempted murder-
victim’s statements set forth in a police report were admissible under the
excited-utterance-hearsay exception, where the statements were made only
a short time after being shot multiple times, the victim provided a description
of his assailants, and the victim did so while bleeding from his gunshot wounds
and awaiting transport to hospital. Manley, 985 A.2d at 266; see also
Commonwealth v. Jones, 912 A.2d 268, 282 (Pa. 2006) (shooting victim’s
identification of the defendant as one of the shooters, made less than ten
minutes after being shot, while the victim was bleeding from his gunshot
wound and awaiting transport to the hospital, as well as second statement to
police made approximately thirty minutes later, were admissible under the
excited utterance exception to the hearsay rule). In Commonwealth v.
Crosby, 791 A.2d 366 (Pa. Super. 2002), this Court stated, “The excited
utterance exception includes statements made in response to questioning as
well as those made shortly after the event, not just those made immediately
thereafter.” Id. at 370 (citations omitted).
In explaining its ruling on this issue, the trial court stated as follows:
Appellant first alleges the [c]ourt erred in allowing the
statements of Duane Alston, the victim, which identified
[Appellant] as his attacker, into evidence. These statements were
made within minutes of having been shot in the head. At least
four witnesses heard these statement[s]. None of these witnesses
were leading the [V]ictim to identify [Appellant. The Victim]
stated that he believed he was going to die. He attempted to
make and asked several of the witnesses to help him call his
girlfriend. Detective Hitchings testified that Mr. Pirl Sr. was
housed in the Allegheny County Jail at the time[.]
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* * *
One wonders whether there can be anything more startling
or exciting than where, as here, the [Victim] was shot in the head.
The [Victim] had a bullet hole in his head[,] and he related how it
occurred. The [Victim] even said that he believed he was going
to die. The statements made by [the Victim] were made
extremely close in time to being shot.
The Court in Commonwealth v. Upshur, 764 A.2d 69 (Pa.
Super. 2000)[,] discussed the hearsay exception of excited
utterances.
In this case, the statement was made by [the Victim] as he
was lying in a backyard at 1:00 a.m., literally minutes after he
was shot in the head. See also Commonwealth v. Cooley, 348
A.2d 103, 106 (Pa. 1975). The claim that the hearsay exception
of excited utterance does not apply is unfounded in this case.
Trial Court Opinion, 5/3/19, at 5–6.
The circumstances of the statement, the sheer magnitude of just being
shot in the head, provides a context for the conclusion that the Victim
experienced a startling event. Moreover, the fact that the Victim was speaking
slowly or calmly as he lay on the ground after being shot is not dispositive.
First, his demeanor may have resulted from the fact that he had been shot in
the head. Second, “there is no requirement that the declarant be emotionally
overpowered, but rather must be speaking under the stress of excitement.
Packel & Poulin, Pennsylvania Evidence, § 803.2, p. 567.” Sanford, 580 A.2d
at 789. We will not reverse an evidentiary ruling by the trial court absent an
abuse of the court’s discretion. Murray, 83 A.3d at 158. Accordingly, we
conclude there was no abuse of discretion in the trial court’s conclusion that
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the Victim’s spontaneous identification of Appellant as his shooter were
excited utterances and were properly admitted as exceptions to the prohibition
on hearsay.
In his second issue, Appellant argues the trial court abused its discretion
in denying a defense request for a neurologist to review the Victim’s medical
records. Appellant sought expert testimony to explain whether, in light of the
Victim’s injury, the Victim would have the ability to identify his shooter at the
time of the incident but then later have no recollection of the event or the
shooter. Appellant’s Brief at 23, 25.
This issue is based upon the Victim’s inability to recall being shot. While
the Victim testified at trial, the whole of his testimony established only that
he had no memory of the shooting, he remembered only waking up in the
hospital, and he was hospitalized until “the end of May.” N.T., 12/6/17, at 71.
On December 4, 2017, the day trial was to begin, Appellant filed a Motion to
Appoint a Neurologist, contending that he believed “that the victim may have
stated incorrectly that [Appellant] shot him due to brain trauma as a result of
the gunshot wound.” Motion to Appoint a Neurologist, 12/4/17, at ¶4.
Appellant further asserted that he contacted Dr. Arthur Kowell of Newport
Beach, California, to review the medical evidence. Id. at ¶6. Appellant
averred that “Dr. Kowell’s hourly rate is $750.00 an hour. He estimates that
his fee for reviewing the documents and providing a written report is $30,000.
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If he is required to testify at trial, he estimates an additional fee of $22,500
plus expenses.” Id. at ¶7.
Our standard of review regarding the appointment of a defense expert
in a criminal matter, is as follows: “The provision of public funds to hire
experts to assist in the defense against criminal charges is a decision vested
in the sound discretion of the court[,] and a denial thereof will not be reversed
absent an abuse of that discretion.” Commonwealth v. Cannon, 954 A.2d
1222, 1226 (Pa. Super. 2008) (quoting Commonwealth v. Albrecht, 720
A.2d 693, 707 (Pa. 1998)). “An abuse of discretion will not be found based
on a mere error of judgment, but rather occurs where the court has reached
a conclusion that overrides or misapplies the law, or where the judgment
exercised is manifestly unreasonable, or the result of partiality, prejudice, bias
or ill-will.” Commonwealth v. Murphy, 182 A.3d 1002, 1004–1005 (Pa.
Super. 2018) (citation and internal quotation marks omitted).
It is well established that indigent defendants have a right
to access the same resources as non-indigent defendants in
criminal proceedings. The state has an affirmative duty to furnish
indigent defendants the same protections accorded those
financially able to obtain them. Procedural due process
guarantees that a defendant has the right to present competent
evidence in his defense, and the state must ensure that an
indigent defendant has fair opportunity to present his defense.
Commonwealth v. Konias, 136 A.3d 1014, 1019 (Pa. Super. 2016)
(citations and quotation marks omitted). However, “the Commonwealth is not
obligated to pay for the services of an expert simply because a defendant
requests one.” Id. at 1020-1021 (internal quotation marks omitted). Rather,
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“[t]here must be some showing as to the content and relevancy of the
proposed expert testimony before such a request will be granted.”
Commonwealth v. Curnutte, 871 A.2d 839, 842 (Pa. Super. 2005).
The trial court set forth its reasons for denying the motion in its
Pa.R.A.P. 1925(a) opinion, as follows:
The court denied this request for several reasons. First, the
motion did not provide any information on the professional
qualifications of Dr. Kowall. Second, an estimated fee of more
than $50,000.00, for an expert witness from California seemed
excessive. Third, the defense appeared to be speculating that a
neurologist would offer this type of testimony. Defense counsel
offered no reasonable alternatives to this witness, nor was there
any proffer that a neurologist would testify in that fashion. Most
importantly, to allow an expert to substitute his or her opinion
would intrude on the responsibility of the fact finder. See
Commonwealth v. Crawford, 718 A.2d 768 (Pa. 1998). It is up to
the jury to believe or disbelieve the victim. The [V]ictim identified
his attacker to at least four separate witnesses. He remembered
waking up in the hospital, weeks later, without any memory of the
shooting. It is the fact-finder who should decide if [the Victim]
was incorrect in his identification. Accordingly the court denied
the Motion.
Trial Court Opinion, 5/3/19, at 7–8.
Appellant has failed to convince us that the trial court abused its
discretion and that relief is due. The Victim’s medical records were made
available during pretrial discovery, and they were admitted as evidence at
trial. N.T., 12/6/17, at 94–97. Generally speaking, expert testimony is
admissible in Pennsylvania only when the expert’s skill, experience,
knowledge, and training will aid the factfinder in assessing a fact at issue.
See Commonwealth v. Batts, 163 A.3d 410, 455–456 (Pa. 2017). In the
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absence of information concerning the nature and scope of a proposed
expert’s testimony, we perceive no abuse of the trial court’s discretion in
denying Appellant’s request. Moreover, the trial court’s conclusion that the
amount requested, $50,000, is exorbitant is reasonable. Appellant faults the
trial court for not offering an alternative; rather, the trial court avers that
Appellant wholly failed to provide a reasonable cost alternative.8 We are
constrained to point out that in his brief, Appellant fails to provide any possible
basis regarding what evidence an expert would have provided beyond mere
speculation. Thus, we discern no abuse of discretion in the trial court’s denial
of funds for an expert.
Lastly, we address Appellant’s claim that the record lacks sufficient
evidence supporting the convictions because “the identity of the shooter was
only established through inadmissible hearsay statements of the [V]ictim.”9
Appellant’s Brief at 26. Our standard of review when considering a challenge
to the sufficiency of the evidence is well settled:
A claim challenging the sufficiency of the evidence
presents a question of law. We must determine “whether
the evidence is sufficient to prove every element of the
crime beyond a reasonable doubt.” We “must view evidence
in the light most favorable to the Commonwealth as the
verdict winner, and accept as true all evidence and all
____________________________________________
8 We note that Appellant has failed to provide notes of testimony from
December 4, 2017.
9 Appellant’s issue is confined solely to this contention regarding identity. He
does not contend that elements of the crimes were not proven.
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reasonable inferences therefrom upon which, if believed, the
fact finder properly could have based its verdict.”
Our Supreme Court has instructed: The facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts
regarding a defendant’s guilt may be resolved by the fact-
finder unless the evidence is so weak and inconclusive that
as a matter of law no probability of fact may be drawn from
the combined circumstances. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence.
In addition, “the Commonwealth may sustain its burden by
means of wholly circumstantial evidence, and we must evaluate
the entire trial record and consider all evidence received against
the defendant.”
Commonwealth v. Green, 203 A.3d 250, 253 (Pa. Super. 2019) (quoting
Commonwealth v. Orie, 88 A.3d 983, 1013–1014 (Pa. Super. 2014)
(citation omitted)). This issue lacks merit.
We ruled supra that the Victim’s statements, that Appellant was the
person who shot him, to four different people as he lay wounded from a gun
shot to the head, were excited utterances properly admitted as exceptions to
the rule against hearsay. Thus, the premise to Appellant’s claim, that his
conviction is based on impermissible hearsay, is erroneous. Appellant’s
assertion that there was no other eyewitness testimony, Appellant’s Brief at
27, nor fingerprints at the scene, id., is of no moment because our review is
conducted in a light favorable to the Commonwealth as the verdict winner.
Green, 203 A.3d at 253. The jury, as the finder of fact, was free to credit the
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testimony of Mr. Steinert, Police Officer Crousey, Police Officer Scruggs and
Sergeant Bandik, who all testified that the Victim identified Appellant as the
shooter. Id. Appellant’s sufficiency challenge has no merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2020
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